Wilson v. Middleton

Chief Justice Lyons

delivered the opinion of the Court. This is an appeal from a final judgment taken since the 1st of July, 1851, at which time the statute prescribing the mode of bringing up causes on appeal became the law. No statement of the case containing the grounds on which the appellant relies for a reversal of the judgment of the Court below has been annexed to the record, but the judgment roll alone has been presented here. The latter disclosing no error, the judgment must be affirmed.

Dwinille for the appellants, filed a petition for rehearing, arguing against the exclusion of the affidavit, &c., from the record, at great length.

Feb. 11th. Justice Heydeneeldt delivered the opinion of the Court. This case was tried in the Court below a sufficient time before the Practice Act of 1851 went into operation, to lead to the conclusion that the case was prepared under the act of 1850. It has, however, been held by this Court, in several cases, that a mere transcript of the evidence as taken down and reported by the clerk forms no part of the record, unless it be embodied in a case, or a bill of exceptions, and have the signature of the judge. A different rule might lead to great abuse in the preparation of exemplifications for the action of the Appellate Court. But even were it otherwise, the decisions heretofore made must be regarded as a judicial construction of the act of 1850, from which we are not at liberty to depart.

The refusal of the judge to give the charge as requested, which appears in the record, and was signed by the judge, is in itself a bill of exceptions, pro tanto. But it is so clear that there is no error either in that refusal, or in the refusal to grant the new trial on the affidavit of the defendant, that we are constrained to deny the motion for re-argument.